In February of 2001, Ben Furth discovered that Wal-Mart, the largest corporation in America, was treating its hourly paid employees horribly. He learned that employees were being locked in their stores at night, told to clock out, and forced to work off the clock; they were also being forced to work through their meal and rest breaks and were having their time cards altered by Wal-Mart management. Wal-Mart was ripping off its workers. Knowing that something had to be done, Mr. Furth drafted a class action complaint and filed it in Alameda County court and started what was to become one of the largest employment class action in United States jurisprudence.
After filing the complaint and serving discovery, Mr. Furth learned that Wal-Mart was no ordinary defendant; Wal-Mart had a legion of attorneys working on the case and used a "scorched earth" policy. During discovery, Wal-Mart repeatedly destroyed and/or hid important documents. For example, days after the class action was filed, Wal-Mart destroyed some of the crucial time records at the store in which the named class representative, Andrea Savaglio, worked. Of course, Wal-Mart claimed this conduct was unintentional; it just made a "mistake."
Up against dozens of attorneys, Mr. Furth called Ms. Kimberly Richards to be the lead attorney on the case. Ms. Richards was an ideal candidate to manage the litigation against Wal-Mart because she is diligent, hard-working, and steadfast in her belief that workers must be treated fairly as her Grandfather, John, fought for worker's rights throughout his lifetime. During the next two years, the two spent thousands of hours working on the case against Wal-Mart. They gather the relevant information that was to be used against Wal-Mart at trial. On most days, the two arrive at work in the dark and left when it was dark; indeed, some nights were spent at the firm working.
Wal-Mart did not just destroy relevant documents, it attacked the named plaintiffs and sought to intimidate them into dropping the case. In one particular vicious attacked, Wal-Mart's attorneys filed motion after motion seeking the deposition of the pregnant daughter of one of the named class representatives. Rather than be intimidated, the named class representatives held strong.
Another tactic Wal-Mart took against plaintiffs was to force class members into signing waiver forms so that they could not participate in the class action. Wal-Mart never explained this fact to the employees that were signing the waiver. Wal-Mart had its managers call employees into the office and told them to sign a waiver indicating that Wal-Mart had also paid them properly. When Mr. Furth and Ms. Richards learned of this abuse, they quickly filed motions to stop this abusive tactic.
After all of the discovery in the case, Mr. Richards and Mr. Furth moved to certify the case. This was a massive undertaking as the class numbered more than one hundred thousand Wal-Mart employees. Without class certification, the case would proceed as just the named class representatives in the case and Wal-Mart would get away with its employee abuse. Mr. Richards created an ingenious and novel statistical model and strategy that provided the crucial evidence against Wal-Mart: this model demonstrated that virtually all Wal-Mart employees working there for any length of time suffered abuse from Wal-Mart's corporate policy of forcing employees to work off the clock, work through meal and rest breaks, and not paying employees properly. This model provided the foundation from which class certification and trial victory were based.
Plaintiffs' hard work paid off: the judge certified the case. Now, the case would proceed as 171,000 employees against Wal-Mart rather than just the three named class representatives.
After class certification, and spending years of their respective lives working on the case, Mr. Furth and Ms. Richards handed the case over to the firm's senior counsel, Fred Furth, to try to hand. So to speak, Mr. Furth and Ms. Richards teed the ball up, and Fred Furth hit it out of the ballpark.
On December 22, 2005, a jury awarded a class of Wal-Mart workers $172 million for damages.
Yes, sometimes David Slays Goliath.
